R Nathan Roberts v Leicester Crown Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 08 July 2020 |
| Neutral Citation | [2020] EWHC 1783 (Admin) |
| Docket Number | Case No: CO/3621/2019 |
| Date | 08 July 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 1783 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham B4 6DS
THE HONOURABLE Mr Justice Pepperall
Case No: CO/3621/2019
and
Michael Haggar (instructed by M & M) for the Claimant
Anthony Lenanton (instructed by the Government Legal Department) for the Defendant
Alex Young (instructed by the Crown Prosecution Service) for the Interested Party
Hearing date: 30 April 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 17 May 2019, His Honour Judge Brown and two lay magistrates sitting at Leicester Crown Court dismissed Nathan Roberts' appeal against his conviction for burglary. On 7 June 2019, Mr Roberts filed a request that the Leicester Crown Court should state a case in relation to two questions:
“(1) Was the Court correct to admit hearsay evidence pursuant to s.116(2)(c) of the Criminal Justice Act 2003 where:
(a) the Crown had made no enquiries into establishing a video-link to Australia (the location of the complainant) prior to the day of the hearing; and
(b) the Crown had established limited contact with the complainant's mother but had not contacted the complainant himself?
(2) Was the Court correct not to recuse itself from hearing the substantive appeal where:
(a) comments such as ‘would you really be putting that in cross-examination?’ and ‘do you really expect us to believe that?’ were made by the bench in relation to the defence case when determining the hearsay application referred to above; and
(b) the Crown supported the application for the bench to recuse itself?”
On 13 June 2019, the Leicester Crown Court refused to state a case on the ground that Mr Roberts' request was frivolous. Mr Roberts now seeks judicial review of the court's refusal to state a case. His claim was considered on the papers by Swift J on 12 November 2019. The judge refused permission on the hearsay ground, observing that it disclosed no error of law and was a decision upon the facts. Swift J granted, however, permission to apply for judicial review of the failure to state a case in respect of the court's decision not to recuse itself. Mr Roberts now pursues his application for judicial review on the recusal ground and renews his application for permission in respect of the hearsay ground.
THE FACTS
This was an unusual case. The prosecution alleged that Mr Roberts had committed a burglary on 12 February 2018 by entering Ben Jones's student accommodation at Loughborough University as a trespasser and stealing two Apple MacBook laptops, an X-box console, a bag, a top and other IT equipment valued at a total of £1,339.98. He was clearly recorded on CCTV entering the secure block as a student left. The footage shows Mr Roberts wearing gloves, trying the door handle of another student's flat and then coming out of the Mr Jones's flat carrying a bag that he did not previously have with him. As he came out of the flat, he was filmed bumping into Mr Jones. The recording shows some conversation and the two men then descended the stairs together.
Following his arrest, Mr Roberts refused to be interviewed by the police. His lawyers subsequently filed a trial preparation form in the Magistrates' Court in which they stated that the issues were “mistaken ID” and alibi. Such defence was plainly hopeless in view of the CCTV footage.
The case was tried by the Loughborough Magistrates' Court on 23 January 2019. Neither Mr Roberts nor Mr Jones attended court. The magistrates proceeded in Mr Roberts' absence and allowed the prosecution to adduce Mr Jones's written statement as hearsay evidence pursuant to s.114(1)(d) of the Criminal Justice Act 2003. At trial, Mr Roberts' lawyer confirmed that it was now accepted that his client was shown on the CCTV footage and that accordingly identity was no longer in issue. By a defence statement filed that day, the defence asserted that no burglary had taken place and that Mr Roberts had entered and taken Mr Jones's property with his knowledge and consent. He was convicted in his absence.
Mr Roberts' appeal against his conviction was, as already indicated, heard by Judge Brown and two lay magistrates on 17 May 2019. Mr Jones was again not present. On this occasion, the prosecution sought to adduce his evidence pursuant to s.116(2)(c) of the 2003 Act on the basis that Mr Jones was outside the United Kingdom and it was not reasonably practicable to secure his attendance. The court acceded to the application.
Following the lunch adjournment, Michael Haggar, who appeared for Mr Roberts in the Crown Court just as he does before me, submitted that the court should recuse itself. In dismissing the recusal application, Judge Brown said that it was entirely without merit. The appeal proceeded and Mr Roberts gave evidence in his own defence. After brief deliberation, the court dismissed the appeal against conviction.
THE HEARSAY GROUND
THE APPLICATION IN THE CROWN COURT
The hearsay application in the appeal proceedings was made on 5 April 2019. It simply stated:
“Mr Jones is in Australia; a fact that came to the attention of the Crown on 1.4.19. It is not practicable to get him back to give evidence.”
If Mr Roberts wished to object to the introduction of the hearsay evidence then he was required, by rule 20.3 of the Criminal Procedure Rules 2015, to give notice of his objection by serving an application that the court determine the question within 14 days of service of the prosecution's own notice. He did not do so.
Helen Marley, prosecution counsel before the Crown Court, lodged a skeleton argument in support of the hearsay application on the morning of the appeal hearing. She observed that the defence had been invited at an earlier ineffective hearing of the appeal to respond to the hearsay application but had failed to do so. As to the merits of the hearsay application, she explained that Mr Jones had been in Australia for over a month and was not due to return until the end of November 2019 at the earliest. She argued that it was “simply not practicable for him to return to this country to give evidence.” She added, at paragraphs 33 and 34:
“33. The Crown have taken a number of steps to locate [Mr Jones] and secure his attendance. It is clear that to transport him back from Australia is both costly and extremely time consuming for the witness. In addition, it is perhaps of note that the time difference between the UK and Australia cause (sic) difficulties for any video link as court sitting hours are effectively during the night in Australia.
34. The Crown have made every effort to secure his attendance; however, it has simply not been possible. It would appear that, given his circumstances, direct contact with Mr Jones is not possible and contact has to be made through his mother.”
In fact on the previous day, Mr Roberts had belatedly filed his response to the hearsay application. It was settled immediately by Mr Haggar upon his instruction that day. Mr Haggar did not dispute that Mr Jones was in Australia, that the prosecution's only channel of communication was by email to Mr Jones's mother or that he would not be returning for some months. He did, however, argue that the prosecution had failed to show that it was not reasonably practicable to secure Mr Jones's evidence by video link. He pointed out that there was no evidence before the Crown Court as to any enquiries made as to the possibility of a video link. Ms Marley replied that a video link would require authority from the Australian government. It was, she asserted, a “pretty extensive legal application that [would] take months to resolve.”
In allowing the application to rely on Mr Jones's statement as hearsay, Judge Brown found that the witness was in Australia and that it was not reasonably practicable to secure his attendance whether in person or by video link. The judge noted that Mr Jones was uncontactable save through his family and would not be back in the United Kingdom until at least November. As to the video link, he said that it would be a “complicated procedure that would require months, probably, in order that the necessary consents, authorisation and funding could be obtained from the authorities in Australia and in this country.” The court found that that would be an “unnecessary delay.” The judge added that a video link from Australia would not be a “cheap exercise” and that there was the logistical problem of a significant time difference, albeit such problem was not insurmountable.
Although Judge Brown refused to state a case on the grounds of frivolity, he did provide the following further explanation of the court's decision in respect of the hearsay application:
“i. The hearsay application was determined on the material before the court, which did not include any mention of a drugs deal as later asserted by Nathan Roberts in the appeal hearing.
ii. The court considered the following matters:
a. the practicality of securing the attendance of Ben Jones who was in Australia and intended to remain there for at least a further 5 months;
b. the complication in securing the video link between UK and Australia which the court was told would be a complicated process and it would take months to obtain the necessary authorization and to organise the link;
c. the cost of setting up the live link and/or paying for a return air fare for Ben Jones to fly back to the UK for the hearing;
d. the significant difference in time zones between the two...
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